In Addressing the Heroin and Opiate Problem in New Jersey, the Attorney General has Missed a Valuable Opportunity
On October 28, 2014, Acting Attorney General John J. Hoffman released Directive 2014-2 entitled “Concerning Heroin and Opiate Investigations/Prosecutions.” The Directive is available at http://www.nj.gov/oag/dcj/agguide/directives/ag-directive-2014-2.pdf
According to the introduction, the State is responding to the heroin epidemic by ensuring the various counties throughout the State are following a uniformed approach regarding the enforcement of criminal law and administration of criminal justice. What follows is a cacophony of creative criminal law policy initiatives purportedly designed to address the problem. According to this author, while some steps have been made to reduce the number of people in the criminal justice system as a result of drug use, the overall effect of Directive 2014-2 will result in more prosecutions and longer sentences, thereby raising the costs already endured by the drug epidemic in New Jersey.
In the Directive, the Office of the Attorney General describes the uniformed policy to be implemented regarding six different stages of a drug case. Part 1 encourages overdose prevention by requiring officers to investigate whether the medical aid exception applies to persons who have called for medical aid following a possible drug overdose. This mandate is the result of legislation passed in 2013 that prohibits the prosecution of a charge of possession to those people who contact emergency services to request aid for a possible drug overdose. Its purpose is to encourage people who need medical assistance due to a possible drug overdose to call the police without fear of arrest. Through Directive 2014-2, Statewide training for police will take place within 120 days, responding officers are directed to investigate the possibility of the immunity prior to arrest, and to report the circumstances to the local prosecutor to make a determination if the immunity applies. This is certainly a step that may lead to a small decrease in arrests for drug possession and possibly save lives.
Part 2 encourages police officer training for Narcan deployment. This is a nasally-injected opioid antidote designed to save the life of a heroin or prescription opioid overdose. This policy is great in theory, but one questions whether law enforcement officers are the best persons available to be making determinations as to whether a person is suffering an opiate overdose and then go the step further by administering a prescription strength drug into the system of a person who is unlikely to be able to consent to the treatment. When administering prescription strength drugs many medically important factors need to be taken into consideration including the victims past medical history, weight, tolerance, allergies, etc. Rather than training officers to administer Narcan, this author suggests that EMTs would be a more appropriate choice. They often respond to the scene as quickly as police, and they are better trained in the diagnosis of medical conditions and the administration of strong narcotics.
Part 3 requests “prompt and thorough investigation of possible prosecutions for strict liability drug-induced death”. New Jersey’s strict liability statute 2C:35-9 makes it a 1st degree crime to distribute drugs that result in a persons death. In 1987, the State created a strict liability statute carrying a sentencing range between 10 – 20 years for drug induced deaths from the distribution of any schedule I or II drug which includes marijuana. Here, the Directive serves to encourage more prosecutions under this statute. As the Directive explains, recognizing that “historically, the drug-induced death statute has been used sparingly,” this Directive encourages the State to “fully, fairly, and expeditious investigate and prosecute” under this statute with a “view toward deterring drug dealers from distributing or dispensing those types of controlled dangerous substances.” However, there is no research demonstrating that strict penalties for drug distribution in fact serve as a deterrence. It is unlikely that drug distributors engage in the cost benefit analysis required for deterrence to be successful; moreover, even if they did, the sale of drugs is so profitable in this country that the penalties if convicted, even the harsh ones under 2C:35-9, are likely viewed as the cost of doing business.
Part 4 seeks “enhanced and coordinated investigation/prosecution of corrupt healthcare professionals and pill mills.” The concept is that doctors and pharmacies are writing pain management prescriptions too often and contributing to the supply of opiates on the street. To combat this perceived problem, the Attorney General has created a Prescription Fraud Investigation Strike Team whose job it is to investigate and prosecute healthcare officials. While the street level drug dealer is likely unswayed by harsh penalties designed for deterrent purposes, medical professionals are not. A very real consequence of this Directive is that Doctors will be deterred from prescribing necessary and appropriate opiate pain management medication for fear they will be on the receiving end of a Strike Team investigation.
Part 5 outlines “enhanced prosecution of drug traffickers who sell ultradangerous opiate mixtures or heroin along with other opiates.” Here, to combat dangerous drug cocktails, the Directive seeks to strength the Brimage Guidelines. The Brimage Guidelines, have frequently been criticized as being overly harsh and reducing discretion with prosecutors and the courts. This measure seeks to further limit that discretion, impose stiffer penalties with long periods of parole ineligibility, and raise the bail of those persons who are charged with Brimage offenses.
Finally, Part 6 recognizes the futility of incarceration in the War Against Drugs and encourages rehabilitation through Court Ordered Special Drug Court Probation. This is a small concession to the enhanced penalties and greater prosecutions demanded under this Directive, particularly since Drug Court Probation has existed in some form since 1996. This Directive offers little to expand the Drug Court program, and in fact, under subsection d, directs prosecutors to identify and screen-out those individuals they believe are malingers and to prosecute them through traditional means.
In whole, Directive 2014-2 is a well-intentioned effort at addressing the drug problems in the State but will likely result in more incarcerations for drug crimes with longer sentences. Through the Directive police officers will be trained and directed to administer strong prescription drugs to possibly non consenting victims who require emergent medical care. Prosecutors will be required to charge the strict liability death by drugs statute and seek enhanced Brimage sentences for distributors of what they consider dangerous opiate cocktails. Doctors will be deterred from prescribing necessary and appropriate opiate pain management medication.
As a result of this new policy from the Attorney General, I predict no decrease in drug usage. However, I do expect to see increased arrests and harsher punishments, costing the tax payers even more. Yet again New Jersey is combating the State’s drug problem with arrest and incarceration and giving lip service to education and rehabilitation. If a fraction of the resources we spend on arrest, prosecution, and incarceration were spent on education and rehabilitation, the drug demand would be substantially reduced and New Jersey would see savings economically, socially, and through the quality of people’s lives which is what matters most.
Michael B. Roberts, Esq.